In The Matter Of Sections 31 and 57 of The Crimes (Mental Impairment and Unfitness To Be Tried) Act 1997 - In The Matter Of An Application By S.S

[2000] VSC 524

SUPREME COURT OF VICTORIA	Do not Send for Reporting
COMMON LAW DIVISION

No.1562 of 1998

In The Matter Of Sections 31 and 57 Of The Crimes (Mental Impairment and Unfitness To Be Tried) Act 1997.
In The Matter Of An Application By S.S.	Applicant

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JUDGE:	Smith, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	3 November 2000
DATE OF JUDGMENT:	13 December 2000
CASE MAY BE CITED AS:	In The Matter Of Sections 31 and 57 Of The Crimes (Mental Impairment and Unfitness To Be Tried) Act 1997 - In The Matter Of An Application By S.S.
MEDIUM NEUTRAL CITATION:	[2000] VSC 524

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Crimes (Mental Impairment And Unfitness To Be Tried) Act 1997 – Application for variation of Custodial Supervision Order to Non-Custodial Supervision Order.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr. R. Backwell	Victoria Legal Aid
For the Department Of Human Services	Mr. R. Bourke	Ms. M. Fazande Department of Human Services
For The Attorney-General	Ms. F. Ellis	Victoria Government Solicitor
For The D.P.P.	Ms. I. McGregor	Peter Wood Solicitor For D.P.P.

HIS HONOUR:

The Applications

1. The applicant, SS, is a person deemed to be subject to a Custodial Supervision Order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (the Act). He brings two applications. The first is an application under s. 31 of that Act for variation of the Supervision Order to a Non-Custodial Supervision Order. In the alternative, he has brought an application under s. 57 of the Act for a further grant of extended leave. I note that the victims have been notified of this application.

Background

1. SS was charged with murdering his wife on 7 October 1989.  He was committed for trial on 5 September 1990.  On 13 December 1990 a jury returned a verdict that he was not guilty on the ground that he was insane at the time of the commission of the offence for which he was charged.  The background and circumstances of the case are set out in judgements of Cummins, J. handed down on 14 December 1998 and Balmford, J. on 13 December 1999 when their Honours considered applications for grants of extended leave under the Act.  I do not propose to recapitulate the matters set out in those judgments but indicate that I accept what is stated in them as to the factual history of the matter. 

Events since last application

1. Since the order made by Balmford, J. for a grant of extended leave, SS has, as was foreshadowed to her Honour, moved from a Main Drive house at the Rosanna Forensic Psychiatric Centre to a unit in Reservoir.  This is a two bedroom unit with a small garden adjacent to a large park and a short distance to a strip of shops and railway station.  He lives alone in this unit.  In this location he is close to his children who both live in Thomastown. 

1. Another major change in his circumstances has been the break up of a six month relationship with a female co-patient.  This ended in late March.  The couple had planned to live together in the unit at Reservoir once appropriate leave arrangements were in place but this did not take place because the relationship ended. 

1. A third significant change in his life has been the diagnosing of diabetes.  He is being treated for this illness at the Darebin Community Health Centre under the supervision of Doctor McBride. 

1. Reports of Doctor Bell, psychiatrist, and Mr Hall, social worker, who have been part of the clinical team looking after S, have been placed before me.  I have also heard evidence from both gentlemen and also from Dr Caroll who has taken over from Dr Bell as S's psychiatrist in the clinical team.  It operates from Brunswick Road Brunswick where there is a community forensic health service.  These witnesses have stated that they have no doubt that S has coped extremely well with the above major stressors that have occurred and has shown no sign of any psychotic or paranoid schizophrenic reaction to those stressors.  I note he also has coped well with two incidents in which he was accosted by members of his late wife's family.  The view of the psychiatrists is that the regime of treatment on which he is presently placed and which has been operating now for some time has been able to provide S with a stable and content existence.  I accept this evidence.  They support the application.

1. On the evidence, I am also satisfied that the movement into the wider community has also had a positive effect on S in that he is much brighter and much happier than he was.  This is no doubt aided by his proximity to his family and, in particular, his daughter who visits him each fortnight and assists him and gives him contact with his grandchildren.

1. S has continued to work consistently with the Brunswick Employment Agency and has negotiated with Centrelink, with the assistance of Mr Hall, adjustments to his pension to reflect the income he has received from his work with the Brunswick employment agency.  I am satisfied that he has received the benefit of social outings through that agency and has also participated in the social activities organised by the FREE (Forensic Recreation Enjoyment and Entertainment) network including a barbecue, a trip to the snow and outings to restaurants.  Mr Hall describes him as a very sociable man who enjoys others' company and makes an effort to join in social activities with both family members and others.

Current treatment regime

1. I have  been provided with a certificate of available services.  I accept the evidence that earlier this year S was meeting with his treating doctor every fortnight and at the same time frequently meeting with his case manager Mr Hall, both formally and informally.  Since approximately August, however, he has met with his treating doctor every four to six weeks and his case manager every two to four weeks on a formal basis.  These meetings have been organised, however, so that one or other of his treating doctor or case manager have seen him each fortnight.  It is accepted that it is important that his mental state is monitored each fortnight.  The anti-psychotic drug he is receiving is Flupenthixol.  He receives that by injection fortnightly.  The dosage is a low dosage.  On occasions the medication has been provided by psychiatric nurses at his home and that is done simply to suit his convenience and tends to be done when he does not have an appointment to see his doctor..

Assessment of current risks

1. I am satisfied that in the intervening period since his last application, S has in his dealings with Mr Hall and the psychiatrist given no cause for real concern about his mental state.  I use the expression "real concern" because in further evidence filed in response to my queries, Mr. Hall revealed

"5.       On page 1 of the Risk Management Plan, five lines from the bottom, it is noted that since the homicide the same nature and intensity of positive symptoms have not emerged while [S] has been in the care of Forensicare.  Mr. [S] can experience some positive symptoms of his schizophrenic illness, which are usually indicated by suspiciousness that intensifies to feelings of personal injustice done against him, unsolicited views indicating that he feels persecuted by people around him or by particular organisations (e.g. Centrelink); by maintaining fixed attitudes to these individuals agencies over a prolonged period (e.g. 6 months or more); and outright denial of any mental illness and refusal to accept medication."

1. The material supplied by Forensicare to the northern area CAT Team (Exhibit DHS7), in particular the Risk Profile (dated 22 October 2000), reveals a number of matters that were not originally spelt out to the court in this application.  I refer, in particular, to the details of the past significant delusions, hallucinations and paranoid experiences.  I note and accept the evidence that they are not present now, but also note the comments in the Risk Profile about his limited insight into the commission of the offence and his mental state.  For example (at p.4)

"insight remains limited.  Issues around the offence and suffering a mental disorder remain unsatisfactorily resolved.  At times Mr. [S] will express limited insight.  Denial and displacement remain the major defence mechanisms."

Later in the papers supplied to the CAT team the following comment appears:

"Insight: Fluctuates and holds to the view that stress caused the incident.  Occasionally he admits to having suffered a schizophrenic illness but is fine now.  Rarely admits to having an ongoing schizophrenic illness.  Holds onto his account of events at time of the incident but misses his wife a great deal especially now that he again lives in the community."

The Risk Profile contains the comment that given the facts of limited insight, notwithstanding 10 years of treatment (at p. 4)

"non-compliance remains a medium to high risk unless appropriate orders ensuring medical treatment are in place." 

1. In the same Risk Assessment it is stated "Risk of harm to self or others very low".  I assume that that assessment assumes continuation of the present regime and compliance with it.

1. I am satisfied, on the evidence, that he has complied with all conditions of his leave plan made in the order by Balmford, J. on 13 December 1999. 

Primary Application

1. In determining the application to vary the order to a non – Custodial Supervision Order, it is necessary to consider the differences between a custodial supervision order and a non-custodial supervision order and to consider whether the changes that will be involved are such that an order should not be made having regard to the criteria and test spelt out in the Act which should guide such a decision..

1. The distinction between a Custodial and Non-Custodial Supervision Order has been considered by the Court of Appeal in RDM v DPP [1999] 2 VR 270, at 288 Winneke, P., commenting on the order that had been made changing a custodial to a Non-Custodial Supervision Order, said that

"The applicant was in fact and in law a person in custody by virtue of the "Governor's pleasure" order. As a consequence of his Honour's order he has now been released from custody upon conditions. This substantially changes his status. He is no longer required to annually seek to have his leave reviewed and renewed by the Court under s. 57. Furthermore, and perhaps more significantly, the stigma of 'prima facie dangerousness' which the Act attaches to a person subject to 'custodial supervision' no longer applies: see SS. 32(2), 35(3), 57(2) and cl. 4(2) of Sca 3.  He will be entitled to apply, at the time which his Honour has fixed for review of his order under s. 27(2), for revocation of that order without having to have considered as a specific statutory prerequisite whether he is a serious danger to himself or the community.  (I do not overlook the general criteria to which the court is to have regard under s. 40)."

The distinction has also been discussed by Ashley, J. and Eames, J. in the matter of (RJW see 11 February 1999; and In The Matter Of GM [2000] VSC 338). From the analyses the following points may be extracted.

1.The power to have a person return to custody to avoid risk to that person or to others differ.  Where a person is on extended leave under a Custodial Supervision Order, the leave may be suspended at any time by the Chief Psychiatrist if satisfied on the evidence available that the safety of the person or members of the public will be seriously endangered if leave is not suspended.  Where a person is on a Non-Custodial Supervision Order there is an emergency power of apprehension where an "appropriate person" believes that

(a)there has been non-compliance with the Order and

(b)that there was a risk of the type described in s. 58(1)

An "appropriate person" is defined in sub-s. 6 of s. 30 as one who reasonably believes that there has been non-compliance with the Order and that there is a risk of the type described in s. 58(1).  Their Honours point out that because it is necessary that the person believe there has been non-compliance with the Order there could be situations where the safety of the person or members of the public is seriously endangered but the conditions of the Order had not been breached.  In that situation the power to apprehend in an emergency would not be available.

They also make the point that under s. 58 it is the Chief Psychiatrist who must have the relevant state of satisfaction and that he or she will be likely to have ready access to necessary information and would have the expertise to evaluate it.  Under s. 30 it is the person carrying out the apprehension who must have the relevant belief. 

2.Apprehension of a person whose leave is suspended under a Custodial Supervision Order may be carried out by a wider class of persons than in the case of apprehension under s. 30 where there is a Non-Custodial Order (see s. 36 of the Act and s. 9 (8) and s. 57A D of the Mental Health Act). Ashley, J. noted, however, that under the Mental Health Act there was a power to sedate which may be of some use (s. 9 (6) ).

3.While in both situations where apprehension has been effected prompt application to the Court will ordinarily be required s. 30 (4) and s. 58(2)(b), s. 58(5) permits the Chief Psychiatrist to lift the suspension without Court involvement, a course not available if apprehension is carried out under s. 30.

4.The provisions relating to Custodial Supervision Orders in permitting extended leave require consideration of extended leave every 12 months by the court.  In the case of Non-Custodial Orders, there is no automatic consideration every 12 months and re-consideration by the Courts will depend upon the period specified in any order made.  It is fair to assume, however, that Court involvement will be less where a Non-Custodial Supervision Order is provided. 

1. Evidence was given that if a Non-Custodial Supervision Order is made, the applicant is likely at some point to pass into the day to day care and supervision of the local area Mental Health Service in the northern region of Metropolitan Melbourne.  The Victorian Institute of Forensic Mental Health, however, will remain in charge .  In addition, there will be an immediate change, if such an order is made, in that the responsibility to provide an inpatient bed, should it be required, will shift to the local area mental health service from Forensicare.  I accept the evidence of Dr. Garwood that, though 'beds are tight" priority would be given to S should a bed be required and the evidence of Dr. Carroll that if inpatient care cannot be provided by the local area mental health service Forensicare would admit S into its facility, the Thomas Embling hospital. 

1. The Crisis Management Team for the northern region is presently involved and would continue to be involved.  I have received evidence from Dr. Garwood, Medical Director of the Northern Mental Health Program and Ms. Moreland, Acting Manager of the relevant CAT Team.  They also support the application.  I am satisfied on their evidence that if the order is changed to a Non-Custodial Supervision Order, the relevant local area mental health service and the CAT Team have been adequately briefed to undertake the responsibilities that would be involved and that systems are in place to ensure that anyone who becomes involved has ready access to necessary information.  That material includes a risk management plan which in its final form is exhibit 1 to the affidavit of Michelle Marie Fazande sworn 5 December 2000.

1. Forensicare has suggested that the following conditions be attached to any Non-Custodial Supervision Order. 

1.That the applicant be under the supervision of the Authorised Psychiatrist of the Victorian Institute of Forensic Mental Health;

2.That he continue to reside at 3/41 Lloyd Ave. RESERVOIR 3073 or at any other address as directed by the Authorised Psychiatrist;

3.That he comply with the lawful directions of the Authorised Psychiatrist, or his or her delegate;

4.That he comply with treatment and tests and attend appointments as directed by the Authorised Psychiatrist or his or her delegate or case manager;

5.That he abstain from the abuse of alcohol and from the illicit use of drugs;

6.That he not leave the State of Victoria without the permission of the Authorised Psychiatrist;

7.That he cooperate and comply with the lawful directions of the local area Mental Health Service.

1. I accept the evidence that there would be benefits to the applicant in varying the supervision order to a non-custodial order.  I accept that the annual return to court involved in the present order is a source of some stress for him – although plainly he is coping well with it.  More importantly, however, it could assist him psychologically because it would confirm the progress that he appears to have made in a way that would be positive for him. 

Analysis

1. An order varying a Custodial Supervision Order to a Non-Custodial Supervision Order must not be made by the Court

"unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order"  (s. 32 (2) ).

1. On the evidence before me S has now for some years been stable and to a large extent free of florid symptoms.  His mental state has improved further in the approximately nine months he has occupied the unit in Reservoir.  It appears that the clinical team that has had his supervision has managed to create a situation in which the florid symptoms of S's illness have been under control for some time.  Critical to that success, however, has been the regular injecting of the anti-psychotic drug once a fortnight and the monitoring by a member of the clinical team at least once a fortnight.  It appears that the monitoring has often occurred more frequently.  It appears that injecting the medication has protected the applicant and the community because of the beneficial impact of the anti-psychotic drug and because it addresses a problem created by his limited insight into his mental health – the problem of ensuring that the medication is taken.  The monitoring has also protected the applicant and the community because it enables trained and experienced persons familiar with S to observe any signs of deterioration.  On the evidence, there have been none for a significant time but the safety to the applicant and the community is in having people with whom the applicant comes into contact on a regular basis who can take whatever action is necessary to deal with any deterioration.

1. It seems to me, however, that to vary the order to a Non-Custodial Supervision Order with only the above conditions would create a situation where I could not be satisfied that SS or members of the community would not be seriously endangered by release of the applicant on a Non-Custodial Supervision Order.  I am troubled by what seems to me to have been the playing down of the extent of the lack of insight in the evidence presented by witnesses compared with the statements quoted above, statements which were produced later in response to my requests.  There is often a tendency on the part of those treating someone to err on the side of optimism in supporting that person.  In addition, the harsh reality of the provision of services of the kind in question in our community, at present, is that these services have been and remain under stress because of lack of resources and the demand for those services.  It is likely, also, that responsibility will be divided.  I am concerned that the pressure to reduce the contacts with the applicant, and to allow self-medication,  once he is placed on a Non-Custodial Supervision Order will increase, bearing in mind his apparently stable condition and the absence of the countervailing influences of a Custodial Supervision Order.  If contact were reduced, it seems to me that a vital protection to the community will be removed.  On the evidence it is required for the foreseeable future.  So to is the provision of medication by injection .  S's lack of "insight" is significant and, on the evidence likely to remain so.  As a result I consider that the proposed conditions do not go far enough to protect the applicant and the community and prevent me reaching the required degree of satisfaction. 

1. The situation would be different if conditions were included requiring monitoring by his case management team at least once every two weeks and the continuation of injected medication or at least supervised medication.  The team includes a doctor, a case worker and psychiatric nurses at Forensicare.  If the case management passes to the Worker Region Mental Health Services, my understanding is that the team there will include like personnel.  Maintaining such contact and treatment would not be too onerous.  I appreciate that it is preferable to resist the temptation to try to second guess the experts.  Detail of treatment and control of the underlying illness is something which should generally not be constrained by a specific condition.  But on the evidence before me, it appears critical for his safety and that of the community that he continue to receive his medication under supervision.

1. In the absence of satisfactory conditions dealing with the above issues my present view is that the applicant has not adequately addressed the issues that are relevant (see, in particular, s. 40) and met the test set out in s. 32(2) of the Act.  I would, however, grant a further 12 months extended leave.

1. I will hear further submissions on the formulation of possible conditions before giving my final decision.

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